Study in the States will examine regulatory changes, expand public engagement between the government and academia, and provide a central online information hub for DHS and its agency partners to provide current and prospective students with updated and relevant visa requirements in a user-friendly format.

On September 30, 2011, U.S. Citizenship and Immigration Services (USCIS) posted a notice on its website stating that, effective September 12, 2011, the agency began sending original Form I-797, Notice of Action, receipt and approval notices directly to applicants and petitioners. USCIS said that courtesy copies of the notices are being sent to attorneys or accredited representatives, if a Form G-28, Notice of Entry of Appearance as Attorney or Accredited Representative, is on file. Previously, the original notice had been sent to the attorney or accredited representative’s address listed on the Form G-28, while a copy was sent to the address provided by the applicant or petitioner in the applicable application or petition form.

USCIS said it implemented this notification change to ensure that documents (such as I-94 Arrival-Departure Records) are mailed directly to the address specified by the applicant or petitioner. USCIS said it “apologizes for any inconvenience caused by not conducting commensurate outreach and providing time for affected stakeholders to adjust their practices.”

USCIS noted that on November 28, 2011, the final rule for Immigration Benefits Business Transformation, Increment I, will take effect. Under the amendments made by this rule, documents produced as the result of an approved application or petition will be mailed directly to the address provided by the party seeking the benefit on the applicable application or petition and not that specified by the attorney or accredited representative on a G-28. “Our objective is to make sure that original receipts, decisions, and documents produced as a result of approved applications or petitions are sent to the address specified by the party making the request,” USCIS said.

In an effort to combat possible scams, USCIS said it generally discourages the practice of entering another person’s address for mailing purposes. Nonetheless, Form I-129, Petition for a Nonimmigrant Worker, petitioners who would like an attorney or representative of record to resume receiving original I-797 notices may use an attorney’s address as the mailing address on the petition, USCIS said.

USCIS warned that using an address other than the petitioner’s address as the mailing address may cause processing delays related to the Validation Instrument for Business Enterprises (VIBE), however, because VIBE automatically uses the address provided on the petition to validate the petitioner’s current location. If petitioners use an attorney’s address as the mailing address on the I-129 petition, USCIS said a cover letter should be included with the filing that clearly indicates the current address of the petitioner. “This information will be used to assist the Immigration Services Officer (ISO) in completing a manual check in VIBE using the petitioner’s address,” USCIS said. “In addition, if an attorney’s address is used as the petitioner’s mailing address on the form, the petitioner will not receive any I-797 notices.”

For petitions filed through Premium Processing, USCIS said the applicant or petitioner may provide an alternate address for mailing of the original approval notice and the I-94 if a pre-paid, self-addressed mailer is provided with the requested mailing address.

Many people have complained about the new procedure. The potential harm that can result from a misrouted, mishandled, or lost document can be serious. For example, when an I-797 notice is sent to a large employer, the document can be misrouted within the organization, resulting in delays in reaching the foreign national. In a worst-case scenario, the document can be lost. In addition, some attorneys have reported that requests for additional evidence are going directly to petitioners and applicants, not to attorneys of record. The change in the processing of notices and decisions undermines the right of a party to the effective assistance of counsel and impedes the ability of attorneys to zealously represent their clients.

The USCIS held a teleconference on October 12, 2011, to hear stakeholders’ concerns about the new I-797 procedures, but it is unclear whether the agency will make any changes.

2. November EB-2 Cut-Off Dates for China and India Most Favorable Since 2007

The November employment-based second preference cut-off date for applicants from China and India is the most favorable since August 2007. This advancement is expected to generate significant levels of demand based on new filings for adjustment of status at U.S. Citizenship and Immigration Services offices. While significant future cut-off date movements are anticipated, they may not be made on a monthly basis. Readers should not expect such movements to be the norm throughout the fiscal year, and an eventual retrogression of the cut-off at some point during the year is a distinct possibility.

The November EB-2 cut-off date for China and India is November 1, 2007.

3. House Judiciary Committee Approves E-Verify Legislation

The House of Representatives Committee on the Judiciary approved a bill on September 21, 2011, that would mandate E-Verify use by U.S. employers for all new employees. A date for consideration on the House floor has not yet been set. The bill, H.R. 2885, was introduced by Lamar Smith (R-Tex.), chairman of the Judiciary Committee.

Among other things, there reportedly was much discussion during markup of the bill about its potential effect on agricultural workers. Rep. Dan Lungren (R-Cal.) said that an E-Verify mandate would “devastate the agricultural industry,” and that the issue should be dealt with “in a practical fashion.” However, Rep. Howard Berman (D-Cal.) offered an amendment that the committee passed, which closed a loophole that would have allowed agricultural employers of returning seasonal workers to be exempt. Rep. Berman said that would amount to a “laughable de facto amnesty,” and Rep. Melvin Watt (D-Cal.) agreed that it would be a “loophole big enough to drive freight trucks, airplanes, and locomotives — all filled with illegal workers — through.” Despite closing the loophole, the bill would still give agricultural employers three years to comply.

A provision to preempt states from mandating E-Verify survived. Rep. Smith argued that preemption “is consistent with a common-sense reading of the Constitution” and that “American businesses need one federal standard for E-Verify, not 50 or more laws.”

4. House Holds Hearing on Immigrant Investor Program and Job Creation

On September 14, 2011, the House of Representatives’ Subcommittee on Immigration Policy and Enforcement held a hearing on the EB-5 investor visa program. House Judiciary Committee Chairman Lamar Smith (R-Tex.) opened the hearing by declaring that the “number one job of Congress is to create jobs.” He said the investor visa program plays a part in achieving that goal. “The regional center pilot project, which is almost two decades old, has become the most used part of the investor visa program,” Rep. Smith noted. “Investment through a regional center is attractive to potential investors because they are relieved of the responsibility of running a new business and they can count indirect job creation towards the job creation requirement.” He said that the Invest in the USA trade association “has estimated that the regional center program has created or saved over 65,000 jobs in the U.S. and has led to the investment of over $3 billion in the U.S. economy.” He also noted that the program is set to expire on September 30, 2012. Rep. Smith said the hearing would focus on how to continue bringing entrepreneurs to the U.S. while rooting out fraud and abuse.

5. Diversity Visa 2013 Registration Begins

The online registration period for the 2013 diversity visa program (DV-2013) began on Tuesday, October 4, 2011, at noon (EDT) and ends on Saturday, November 5, 2011, at noon (EDT). Entries must be submitted electronically with photographs. There are no fees to enter. The Department of State strongly encourages applicants not to wait until the last week to enter, because heavy demand may result in website delays and no applications will be accepted on paper or after the deadline. For fiscal year 2013, the program will make available 50,000 visas to eligible persons from countries with historically low rates of immigration to the U.S.

Persons born in Hong Kong SAR, Macau SAR, and Taiwan are eligible. For DV-2013, natives of South Sudan and Poland are now eligible.

To be eligible for the DV program, a person must be a native of one of the listed countries and must meet either the education or work experience requirement of the program. Entrants must have either a high school education or its equivalent, defined as successful completion of a 12-year course of elementary and secondary education, or two years of work experience within the past five years in an occupation requiring at least two years of training or experience to perform. The Department of Labor’s “O*Net OnLine” database, which will be used to determine qualifying work experience, is available at http://www.onetonline.org/.

A successfully registered entry will result in a confirmation screen showing the entrant’s name and a unique confirmation number. The entrant must print this confirmation screen and retain the confirmation number. Starting May 1, 2012, entrants will be able to check the status of their DV-2013 entries by returning to http://www.dvlottery.state.gov, Entrant Status Check, and entering the unique confirmation number and personal information. Entrant Status Check will be the sole means of informing entrants of their selection for DV-2013, providing instructions on how to proceed with an application if selected, and notifying entrants of their appointment for an immigrant visa interview. The Department of State warned that it will be unable to provide an entry confirmation number if it is lost.

The Department of State released “official” instructions in English and “unofficial” instructions in Albanian, Polish, Romanian, Russian, and Uzbek.

6. SSA Inspector General Finds Anomalies in H-1B Workers’ Use of Social Security Numbers

The Social Security Administration’s Office of the Inspector General (OIG) released a report in September on H-1B workers’ use of Social Security Numbers (SSNs) that could result in more close monitoring of status violations by H-1B workers and potential liability for H-1B employers.

Based on the results of the review, the OIG estimated that about 7,131 (18 percent) of the 38,546 H-1B workers to whom the SSA assigned an SSN in 2007 may have used their SSNs for purposes other than to work for their approved employer. This estimate included about 4,433 (11 percent) H-1B workers who had posted wages during the audit period from an employer other than their Department of Homeland Security (DHS)-approved employer. The estimate also included about 2,698 (7 percent) H-1B workers who had no posted wages from 2007 through 2009.

The OIG noted that unauthorized work by H-1B workers weakens SSN integrity and may require that the agency pay future benefits to individuals who misuse an SSN to work in the U.S. In addition, the OIG noted, H-1B workers who do not work for their approved employer “could pose a risk to homeland security, because they may obtain employment in sensitive areas.”

The OIG also commented on a recent DHS study reporting that about 21 percent of the H-1B petitions it examined involved fraud or technical violations. The types of fraud identified included counterfeit or forged documents, storefront or shell businesses, no bona fide job offer, and misrepresentation of H-1B status. DHS subsequently clarified field guidance and instituted employer site visits to reduce alleged fraud and abuse in the H-1B visa program.

Additionally, the OIG noted, the Department of Justice has pursued criminal charges in some H-1B fraud cases. In one case, six individuals pled guilty to participating in a criminal conspiracy with the owner of a consulting firm to obtain H-1B visas for ineligible or unqualified individuals. All six individuals admitted that they had secured cash-paying jobs from unapproved employers instead of working for the consulting firm. In another case the OIG discussed, U.S. Immigration and Customs Enforcement agents arrested 11 individuals accused of H-1B visa fraud. This investigation involved companies that did not always have jobs available for H-1B workers, which placed the workers in non-pay status after they arrived in the U.S. These companies and workers also allegedly submitted false statements and documents to support their H-1B visa petitions, the OIG noted. Because the subject of the OIG report involved immigration enforcement and visa-related issues, the OIG said it planned to share the report with the DHS and State Department Offices of Inspector General.

The OIG recommended that SSA contact DHS to offer to establish a data match agreement to assist DHS’s efforts to identify and reduce the number of H-1B workers who may use their SSNs for purposes other than to work for their approved employer. SSA agreed with that recommendation.

7. State Dept. to Conduct On-Site Reviews of Summer Work Travel Sponsors

The Department of State announced on September 23, 2011, that it plans to conduct on-site reviews of Summer Work Travel Program sponsors to evaluate regulatory compliance. The program provides foreign college and university students the opportunity to work and travel in the U.S. during their extended academic break (summer vacation) for up to four months.

The Department explained that on April 26, 2011, it published an interim final rule governing the Summer Work Travel category under the Exchange Visitor Program. In that rulemaking, the Department set forth its three-step approach to addressing a number of concerns regarding sponsor administration of this program:

The Department adopted a pilot program in January 2011 to enhance protections for foreign nationals from Belarus, Bulgaria, Moldova, Romania, Russia, and the Ukraine.

The Department issued the interim final rule, which incorporated many of the concepts of the pilot program into the overall Summer Work Travel Program regulations.

The Department intends to conduct on-site reviews to monitor sponsor performance, to assess category-wide regulatory compliance, and to consult with sponsors about implementation of the interim final rule.

Close monitoring of Summer Work Travel sponsors during the summer of 2011 resulted in the Department’s modifying its plans for the on-site reviews. Specifically, the Department evaluated all Summer Work Travel sponsors’ compliance with program regulations regarding the maintenance of current and accurate records in the Student and Exchange Visitor Information System (SEVIS) from September 1, 2009, through August 30, 2010. It also reviewed Summer Work Travel-related complaints for the 2011 summer season and monitored the media for additional reports of program problems. As a result of these efforts, the Department determined that it will not visit sponsors based solely on their size, but instead “will conduct compliance reviews of those designated sponsors whose compliance with the relevant Exchange Visitor Program regulations deserve closer examination by the Department.”

Currently there are 51 designated sponsors in the Summer Work Travel category. Of those, the Department has identified 14 sponsors that will be reviewed. Although the Department may later decide to evaluate additional sponsors, it intends to visit these 14 sponsors (which the Department did not name but said that they together sponsor about 65 percent of all Summer Work Travel participants) between October and December 2011. On average, the Department expects that each on-site review will take two full business days and will be preceded by written notice 10 days in advance and a request for certain specified documents.

The Department said the on-site reviews will focus on evaluating the overall program administration and the effectiveness of the modifications to sponsors’ program administration resulting from implementation of the interim final rule and the pilot program. A primary goal of these reviews is to assess whether the sponsors have been able “to comply and remain in continual compliance with all provisions of Part 62” (22 CFR 62.3(b)(1)). To this end, the reviews will focus on sponsor compliance with the pilot program guidelines and participant monitoring requirements, maintenance of accurate SEVIS records, and sponsors’ relationships with third parties they have engaged to assist in carrying out the core programmatic functions inherent in the administration of exchange visitor programs (i.e., screening, selection, orientation, placement, monitoring, and the promotion of mutual understanding). Other areas of interest may include sponsors’ roles in assisting participants in finding suitable housing; decision-making processes (including the numbers of participants accepted); self-imposed compliance mechanisms; procedures for handling student participant problems (including finding new jobs for those whose pre-arranged placements were unsatisfactory); and policies for refunding deposits or payments to student participants.

Finally, the Department said it intends to use these reviews as an opportunity for sponsors to provide feedback on the pilot program and the interim final rule in general, and more specifically, sponsors’ experience with the relevant new regulatory provisions during the summer season of 2011. Feedback will be used to assist in issuing the final rule. Best practices will be collected from the on-site reviews and shared with the wider sponsor community.

Sponsors who are not included in these reviews and wish to comment should e-mail their comments and concerns to the Department at JVisas@State.gov.

8. DHS Launches ‘Study in the States’

On September 16, 2011, Secretary of Homeland Security Janet Napolitano and Immigration and Customs Enforcement (ICE) Director John Morton announced an initiative to streamline the international student visa process for foreign students seeking to study in the U.S. The “Study in the States” initiative is “a key component of a government-wide effort to encourage the best and brightest foreign students to study and remain in the U.S.,” a Department of Homeland Security (DHS) media release said.

“Attracting the best and brightest international talent to our colleges and universities is an important part of our nation’s economic, scientific and technological innovation and competitiveness,” Secretary Napolitano said. “Foreign students and exchange visitors bring invaluable contributions to our nation, and the Study in the States initiative is an important step in empowering the next generation of international entrepreneurs, right here in America.”

DHS noted that more than 1.1 million active nonimmigrant students and exchange visitors and their dependents study in U.S. universities, exchange programs, and training opportunities. Study in the States will examine regulatory changes, expand public engagement between the government and academia, and provide a central online information hub for DHS and its agency partners to provide current and prospective students with updated and relevant visa requirements in a user-friendly format.

“Study in the States encourages international students who seek the wealth of educational opportunities available in the U.S. to remain here following their studies and apply their new skills here in our country,” said ICE Director Morton. “We aim to strike a balance—providing an open and welcoming experience for international students and visitors seeking information, while maintaining the integrity and security of our visa process. This site is an important step toward reaching that goal.”

DHS said that the Study in the States website is intended to be an innovative, interagency portal that will include:

Interactive and accessible information, allowing prospective and current students to visually navigate steps of the student visa process on their own “Road Map to Success.”

Links to social media websites, such as Facebook and Twitter, disseminating relevant visa requirements and information to international students, exchange visitors, and the academic community.

A blog with posted videos, public service announcements, relevant news, requirements, helpful tips, and success stories.

DHS said that Study in the States builds on other new policies intended to encourage talented students from other countries to study and work in the U.S. For example, earlier this year, DHS announced an extension to science, technology, engineering and math (STEM) degrees for international student studies, allowing graduates of a STEM degree to remain in the U.S. through Optional Practical Training (OPT) for up to 29 months after graduation.

9. Government Agency Links

Follow these links to access current processing times of the USCIS Service Centers and the Department of Labor, or the Department of State’s latest Visa Bulletin with the most recent cut-off dates for visa numbers:

10. New Publications and Items of Interest

Case assistance. The U.S. Citizenship and Immigration Services (USCIS) Ombudsman has posted information about obtaining assistance with immigration cases. “If you have a problem with your USCIS application or petition, the Ombudsman may be able to help. The Ombudsman provides an impartial and independent perspective to USCIS in an attempt to resolve problems. Before contacting the Ombudsman for help, first try to resolve your problem by using the USCIS customer service options available to you.” The website lists those options, then notes that:

The Ombudsman may be able to help if:

You are facing an emergency or hardship caused by a mistake, error, or delay by USCIS.

You are experiencing a problem with your application or petition that you have not been able to resolve with USCIS.

You are seeking legal advice. The Ombudsman does not provide legal advice.

You are seeking assistance with an issue that does not involve USCIS. The Ombudsman’s authority is limited to assisting with problems that relate to USCIS applications, petitions, or services.

NOTE: While the Ombudsman’s Office provides impartial and independent recommendations to USCIS on how to resolve problems, the Ombudsman’s Office does not have the statutory authority to make or change USCIS decisions.

Foreign labor certification annual report. The Department of Labor’s Office of Foreign Labor Certification has released its annual report for the period October 1, 2009 – September 30, 2010. The report notes, among other things, that in the last three quarters of fiscal year 2010, computer-related occupations ranked among the most commonly requested occupations on prevailing wage determinations (PWDs) issued. Computer Software Engineer, Computer Systems Analyst, Computer and Information Systems Manager, and Computer Programmer occupations constituted over 25 percent of the total PWDs issued. Of these occupations, Computer Software Engineers, Applications, was the most frequently requested occupation, representing 13 percent of all PWDs issued. The remaining most frequently requested occupations each represented 2 percent or less of the total PWDs issued.

11. Klasko News

News and Noteworthy

Lawyer of the Year Best Lawyers, the oldest and most respected peer-review publication in the legal profession, has named H. Ronald Klasko (Ron) as the “Philadelphia Best Lawyers Immigration Law Lawyer of the Year” for 2012. Ron received particularly high ratings in Best Lawyers’ surveys by earning a high level of respect among his peers for his abilities, professionalism, and integrity. Congratulations Ron on being selected as ‘Lawyer of the Year’!

Upcoming Speaking Engagements

William Stock (Bill) will be presenting at the MidAtlantic Employers’ Association (MEA) Fourth Annual Labor and Employment Law Conference on November 1. Bill will discuss “Immigration: Ensuring a Legal Workforce: Update on Enforcement Activities & Tools.” As the Federal government has stepped up enforcement on I-9 compliance, Bill will provide insight on what’s new and what employers may need to do. For more information on this conference, contact Bill.

On November 3, 2011, Ron will discuss “Immigration Options for Scholars and Researchers” at a program sponsored by the Biomedical Postdoctoral Programs at the University of Pennsylvania School of Medicine. Also in November, Ron will be speaking at Yale University and the Harvard Business School, among other scheduled programs. If you would like to arrange a free on-site program at your organization, write to Ron at rklasko@klaskolaw.com.

Elise A. Fialkowski will be a panelist on “The Government is Watching – Site Visits, Audits, and Inspections” a session at the NAFSA Region VIII conference in Philadelphia on November 3. More than ever, universities have been facing site visits, audits, and inspections of their student/scholar programs. The panel will cover these developments and how to develop an institutional policy to respond, including:

F-1 audits, recertifications and decertification procedures

J-1 inspections and compliance audits

H-1B site visits

Practical advice to deal with increased scrutiny and institutional response

On November 15, 2011, Bill will discuss post graduation options for students and scholars at Temple University. For more on this talk, contact Bill at wstock@klaskolaw.com.

Elise will be presenting at a CLE Employment Law seminar sponsored by Sterling Education Services, Inc. on December 15 in Wilmington, DE. The presentation entitled “Employment Law Beyond the Basics” will include such topics as Employment based immigration; E-Verify; I-9 Forms and SSN mismatch/no match.

Recent Speaking Engagements

Bill presented to undergraduate students and also spoke to MBA candidates at Duke University on October 27. Both presentations are available on the “Events Calendar” on our website.

On October 22, Ron participated at the Annual AILA Central Florida Chapter Fall Conference in Clearwater, FL. Ron served as a panelist on “EB-5s: The Future Ain’t What It Used to Be.” For more information on the EB-5 visa, visit www.eb5immigration.com.

Ron served as a panelist on “Winning the End Game: Removal of Conditions,” a session at the American Immigration Lawyers Association (AILA) 2011 Fall EB-5 CLE Conference from October 20 – 21, 2011 in San Antonio, TX. This session provided an in-depth look at strategies and tips for the successful removal of conditions to permanent resident status, and also examined possibilities of litigation in the event of petition denial. For more information on this topic, contact Ron at rklasko@klaskolaw.com.

October 12, 2011, Ron spoke to MBA students at the Wharton School of the University of Pennsylvania. To review the PowerPoint presentation, click here.

Also on October 12, Bill led a panel presentation at the AILA Upstate New York Conference on “Hot Issues in H and L Adjudications. For the latest trends in H and L visa processing, contact Bill at wstock@klaskolaw.com.

On October 7, Ron was at Select Greater Philadelphia and addressed a delegation of Turkish businessmen on issues relating to doing business in the U.S. He discussed H, L and E visa issues and permanent residence through labor certification and EB-5. For information on doing business in the U.S., contact Ron.

Recent Publications

Matthew T. Galati (Matt) published “Don’t Lose the Holy Grail: Avoiding Abandonment of Permanent Resident Status” in the October 21, 2011 issue of The Legal Intelligencer. In this article, Matt discusses the rights and responsibilities of lawful permanent residents – i.e. people who have Green Cards. Matt debunked some common misconceptions involving permanent residency and provided advice to Green Card holders who may be considering lengthy trips abroad. For a copy of this publication, write to Matt at mgalati@klaskolaw.com.

Bill Stock co-authored the article “Post-residency job hunting for the IMG” which details immigration issues for international medical graduates. This article was published in the Fall 2011 edition of PracticeLink.com, a publication of the American Academy of Pediatrics.